19760227 TZHC Arusha

IN THE HIGH COIT OF TANZANIA - AT_IRUSHA APPELLATE_JURISDICTION HIGH COURT CRflINAL APPEAL NO. 70 OF 1975 ORIGINAL CRIRINAL. (CASE NO • 10 OF 1975 OF THE DISTRICT COURT OF .MrJI{EZA DISTRICT AT LUJHEZA BEFORE: P • A. IfVITL, Esq., District 111 Eisvl,.- ratc I.IISI MSELJ) MTJAIRO OiLRI )......... . ... ........ AI'PELLANTS . ZEBERI MAKATA ) (Original Accused.) versus UE PET 1 BLIC S0TTENT (Original :rsocutor)

JTJDGMENT JONATHAN, J. The.appol1ents werc:convictcd of cattle theft, c/os. 268 and 265 of the Penal. Code and duly. given the mininum sentence. The nispusa fcbs show bho head of cottle of the couplainant (Pi.l).disappearod and that no subsequontiy fouid then eiixcd in th herd. of aoii]ers of an Ujauaa Village of which I'.T.3 was the Chairuan and the let accused a racriber. The cattle, sixty seven of tu, wore owned by several eeibors of the village, including the let accused., who had together euplcyod .f.W.2 as the herdsboy. The chairnian cf the villa,o upon tIlL. Lo iied of cat tle etr'in to join their herd. had instructed the hcrdshoy to look after the two. -_ aniwais until their owiior showed up t.: take thou.. W.3 subsoquontly dicovored that one of the aninals was nissing and upon asking the herdsboy the latter replied that the • ............ixler had cone to take it. Ultioetoly, when the couplainant' - ca eto take the ani ols he f -nc w o iseiag The herdeboy upoli being asked was hard placed to explain but following a further interrogation ho said that the aninal had been taken by the let accusod who had been accorpanied by ti'ie other accused persons and that the let accused had then sold' the anL.Ial to Gho ol;ner two accused. The hcrdsbo in' his evidence said that the accusod persons had followed Iiiu at the grazing ground and that the 1st accused had then expressed

his desire to sell one of the aninals to the other accused. I-Ia subuitted to his porsuasibn and ho took that animal and sold it to thort for shs.300. It was agreed that the witness should rcat the transaction as a greet secret for which the 1st accused would give hiLl-ths.50, It was fartilor agreed that, should the herdsboy later be asked he should say the owner had collected. the aninal.. The deal ccncluaod, the saw.the accused. persons slaaghtering the animal but ho would not know where they took the neat. All. . . . • • . . . . . ../2 -2- LU three accused. in their testinonies duniod the allegations of the hcrdshcy. The first accused adritec1, eniployed hewevor, that although the herdsboy WaS jointlyLby rieribers of the villa.':e, he had his accounodatieri and neals at the accuseds house. The other accused for their part ad.aitted they were butchers. The Convictions were 1oased solely on the evidence of the hordsboy. The learned trial :aagis tratofound however that he was a truthful witness and he felt safe to convict on his evidence a±eno. The eiaaistrate was jus t if i ed to act solely on his uncorroboreGod evidence only if the witness was, not an acconplico. Ho considered that Joe as not, this apparently Lof on accountLthe close relationship there had existed between the witness and the first accused. The learned state attorney at the hearing of the apocal was of the

sane view. I would respectfully disagree. The herdeboy when he gave the aniLial that had been entrusted to hin to the first accused know. he was aiding and abetting the theft of that aninal and he was not neroly an indifferent by—stander, and the fact that he was proeisod, if not given, a reward for which he seers to have agreed to iart with the aninal would indicate he participated fully in the arrangereit. There nay have been intiaacy between hin and the first accused on account of which ho would have boon disinclined to testify falsely agninst hin, but that did not detract fran the fact that he was an acco:roplice. Clearly, flee cviaence required corroboration in order to convict. Reading his ovidonco closely I got the inprossion that ho was not being th:t truthful after all • In particular, ce, as lie says, no sear ehe accused slaugiatering the aninal in the busn he would roaLlil have shown £.v.l and P .W.3 such place and they would nest probably have found indications of such slaughter there. It was patently unsafe to convict on the uncorroborated evidence of the herdsboy and, accordingly, the convictions are ouashed and sentences set aside. The ap J ollaflts should be released. orthwith. 77 (r. M. JOI.h.THLN) JUD&EO JudgrLent delivered in open Court at Arusha this 27th day of February, 1976. ,~ 4 (r. Jo. JORLTHLN) P1IJ/LiTPJo. JUDCTE.